A California appeals court unanimously turned back an attack on the arbitration program that Kaiser Permanente patients must use when charging malpractice.
The case involved Kaiser member Wilfredo Engalla, who died of lung cancer in October 1991. From 1986 to 1991, Kaiser physicians and nurse practitioners gave Engalla medication for colds and allergies. X-rays taken in 1991 revealed inoperable lung cancer, according to the appeals court decision.
In May 1991, Engalla and his family demanded arbitration of their claims that Kaiser was negligent in failing to diagnose Engalla's lung cancer sooner. It took 144 days until an arbitration hearing was scheduled, and Engalla died the next day.
Charging that Kaiser misrepresented the speed of its arbitration program, Engalla's family filed suit in Alameda County (Calif.) Superior Court. The family also charged professional negligence, fraud and breach of contract.
The trial court found that "the Kaiser arbitration program is oppressive and unconscionable" and denied Kaiser's motion to compel arbitration.
But in a decision written by Justice Michael Phelan, the appeals court in San Francisco found that there was no evidence to support the trial court decision and ordered the Engallas' claims into arbitration.
The appeals court noted that it takes an average of 863 days to reach a hearing in a Kaiser arbitration.
"The main argument (for arbitration) is that it's faster than the courts," but Kaiser's is "much, much slower," said David S. Rand of San Francisco, the Engallas' attorney. The appeals court decision will "ultimately hurt those healthcare providers and HMOs that use arbitration programs for their intended purpose-for expediency, efficiency and maintaining a fair forum," he said.